Plaintiff v Defendant

2 Mr David ReeseHackford ("executor") was, at the time of the deceased's death, the senior partner of the firm. He obtained probate of the will on 11 July 2008. The will provided for modest bequests to some of the deceased's children and grandchildren, but left the residuary estate (constituting, in particular, the deceased's home in Traralgon) to a grandchild, Christina Pietzak ("Christine"). Christine is, and apparently always has been, disabled to some degree. Christine, who is currently in her forties, has lived with her grandparents from 1986, and continued to live in the deceased's home ("property") after the death of her grandmother and the movement of her grandfather into residential aged care in 2004. Both Christine and her grandparents were estranged from Christine's mother, Elizabeth Standford ("Elizabeth"), who is also disabled, and is the respondent to this application. Christine and Elizabeth both suffer from myotonic dystrophy, a progressive genetic disorder with a range of debilitating and progressively worsening symptoms.

3 The executor had no prior contact with the family prior to the death of the deceased. However, in the course of his executorship, he assumed (or, perhaps had thrust upon him) the role of being a major source of advice and support to Christine, who had no other family members or friends capable of supporting her through what proved to be a difficult period.

4 By summons filed 17 August 2011, the executor sought an order under section 65 of the Administration and Probate Act 1958 ("Act") that a commission of three per cent of the income and corpus of the estate be paid to him for his pains and trouble in administering the estate. Orders were made for service of the application upon the residuary beneficiaries of the estate, and when Elizabeth (a residuary beneficiary by reason of the settlement of her claim under Part IV of the Act ("Part IV claim")) sought to be heard upon the application, for the filing and service of affidavit material. The following evidence was before the Court at the hearing of the application:

(a) an affidavit sworn by the executor on 16 August 2011 verifying the administration account as required by rule 6.03 of the Supreme Court (Administration and Probate) Rules 1994;

(b) an affidavit sworn by the executor on 17 August 2011 in support of his application for commission;

(c) an affidavit sworn by Elizabeth on 1 February 2012; and

(d) the further affidavit of the executor in response to Elizabeth's affidavit sworn on 8 March 2012.

5 The administration account filed by the executor on 10 August 2011 shows that the gross value of the estate is $342,533.94, and the net value of the estate is $291,393.11, of which $153,661.88 has been distributed. The executor claims a commission of three per cent upon the corpus and income of the estate (approximately $10,600).

6 In his initial affidavit in support of his claim for commission, the executor deposed to the formal matters regarding the administration of the estate and his proposal for the manner in which the estate should be finally distributed. In relation to his claim for executors' commission, he deposed, in summary, as follows:

(a) he had no personal knowledge of the deceased or his family prior to his appointment as executor;

(b) State Trustees were appointed as administrators for the deceased on 22 May 2008, following which State Trustees charged Christine a modest rent for residing in the property;

(c) he learnt of the deceased's death through a telephone call from Elizabeth's husband requesting that he release money for the payment of funeral expenses. State Trustees then contacted him to notify him that the deceased's body was at the Latrobe Valley Funeral Home. At about the same time, he was contacted by Christine who informed him that she had been renting the deceased's home and was concerned that she would be evicted as her mother, Elizabeth, was going to contest the deceased's will;

(d) he was aware of the poor health status of both Elizabeth and Christine. Both suffer the disorder of myotonic dystrophy which, among other things, can cause adverse cognitive effects. He noted that Elizabeth conducted the Part IV claim without a litigation guardian, but on 9 July 2010 (prior to the execution of terms of settlement of the Part IV claim) he sought a medical report from a neurologist at Monash Medical Centre regarding Christine's condition, which concluded that Christine had cognitive capacity at that time;

(e) he considered that Christine placed a special reliance upon him in the course of his administration of the estate. She had lost her primary support, being the deceased, and was estranged from her mother, her stepfather and her brother. As a disabled pensioner, she had no work activity or friendships;

(f) Christine was remarkably attentive to detail but obtaining instructions from her was onerous;

(g) prior to the settlement of the sale of the property, Christine paid weekly rent for the deceased's home at the same rate charged by State Trustees. She attended his office each week to make payment in person;

(h) while he delegated to his staff the task of filtering the urgency of things needed for his personal attendance for day to day matters, he personally attended on Christine on approximately a monthly basis over a two and a half year period. No charges were made to the estate administration or litigation file for these visits;

(i) Elizabeth issued a Part IV claim on 20 November 2008, which settled in principle in June 2010, two days prior to the listed hearing date in the County Court;

(j) as a direct result of preparing for the defence of the Part IV claim, Christine was diagnosed with myotonic dystrophy, which involved him providing support to her with the process of obtaining a diagnosis. He was required to organise appointments with specialists and persuade her to attend them, and organise her travel to Monash Medical Centre;

(k) his firm charged legal fees for the conduct of the defence of the Part IV claim of $18,465 (as assessed by the Law Institute of Victoria's Costing Service ("LIV")). Disbursements of $16,148.75 were also incurred and paid. The executor did not charge professional fees to the litigation file for time spent with Christine on the topic of her mother's claim;

(l) Elizabeth's legal costs were assessed by the Law Institute of Victoria's Costing Service at $30,255, with disbursements of $16,568.89;

(m) the terms of settlement of the Part IV claim involved an agreement that Christine and Elizabeth share the residuary estate on the basis of 51% to Christine and 49% to Elizabeth. The terms of settlement also provided for a cap on Elizabeth's legal costs at $40,000, and a cap on the executor's legal costs of $35,000. The terms also provided for an interim distribution to each of Elizabeth and Christine of $50,000;

(n) in order to facilitate the implementation of the terms of settlement the executor required possession of the property to arrange for its sale. The executor had a number of attendances with Christine to encourage her to relocate to Queensland, close to her father. He was required to motivate her to take action to reorganise her life, relinquish her home and move interstate;

(o) given the poor state of the property, he organised skip bins for rubbish removal, house cleaning and carpet cleaning and inspected the cleaning works and the property generally from time to time. He dealt with the selling agent and personally attended the auction on 30 October 2010. One issue raised by the selling agent was that there were concerns regarding the potential impact upon potential buyers of Elizabeth's husband and son attending the property during cleaning and inspection. However, he decided that the wisest course was to take no action to prevent this from occurring in order not to further inflame matters within the family;

(p) the property was passed in and he sold the property for $192,000 with Elizabeth's consent. He otherwise organised maintenance of the property after its sale and prior to settlement;

(q) his administration of the estate otherwise involved redeeming assets, including moneys held by State Trustees, locating a bank account, arranging for the sale of the property, paying rates, outgoings and insurance on the property, assisting Christine with the repair and maintenance of and two insurance claims relating to a motor vehicle which belonged to the deceased but was used by Christine (the vehicle was involved in two accidents); and

(q) the application for probate and administration of the estate was conducted by his firm. The firm charged $5,930,80 for this work.

7 Finally, in support of his application, the executor deposed as follows:[1]

As executor of this estate, I took on a difficult role within a family with contentious relationships, serious health disorders and no occupations in life. I devoted my personal time and energy to the administration of this estate, primarily by direct assistance to Christine, supervision of the property, and the conduct of the litigation as executor.

My file records 11 conferences with Christine Pietrzak on 15 June 2009, 27 July 2009, 17 December 2009, 20 January 2010, 15 February 2010, 15 April 2010, 18 May 2010, 16 July 2010, 15 August 2010, 27 August 2010 and 20 September 2010, though I believe that there were additional times which I did not record due to time constraints. The recorded conferences were necessarily lengthy. Additionally Christine attended the office on another 118 occasions to pay rental. During her attendance she would frequently engage in debate, ask questions of my staff or that they refer matters to me, or otherwise make her presence known. With a view to maintaining relations and avoiding prolonged debate or hearing Christine on all matter of issues, I was required to tutor staff on how to manage her being aware of the need to extricate myself from extensive direct and lengthy dealings and to ensure that relations remained cordial and I could have a working relationship with her. As a result of a speech impediment and the strain she was under, Christine could become loud for the benefit of staff and clients in our waiting room, though this did abate over time.

8 Elizabeth gave evidence in opposition to the executor's application for commission. Strictly speaking, much of her affidavit was properly characterised as submissions, in that it specified the grounds upon which Elizabeth objected to the grant of commission. Elizabeth deposed that her objection to payment of commission to the executor is based upon the following matters:

(a) the executor has already been more than sufficiently remunerated for his services by the payment of legal fees to his firm in relation to the administration of the estate and the defence of the Part IV claim;

(b) the estate is small and cannot bear the further charges which the executor now claims;

(c) the beneficiaries, being herself and Christine, are both pensioners in financial need with significant health issues and will be detrimentally affected by any further diminution of the estate;

(d) the executor has been remiss in the administration of the estate; and

(e) the executor has significantly delayed in bringing his application for commission.

9 Elizabeth also deposed that she was informed by her solicitors and believed that the executor was not in a position to obtain valid consent to the payment of executors' commission from Christine unless Christine obtained independent legal advice, particularly considering her reduced capacity. She deposed that she believed that the executor had been remiss in the administration of the estate for, among other things, the following reasons:

(a) despite the fact that Christine lived in the deceased's home for some years after the deceased's death at a reduced rental, the executor sought to use estate funds to clean and clear the property before sale, thus absolving Christine from any responsibility as a tenant;

(b) the executor failed to realise the deceased's motor vehicle (a wasting asset) or transfer full responsibility for the vehicle to Christine, which caused the estate to incur unnecessary expense;

(c) the executor has distributed $53,000 to Christine without her consent (taking into account the value of the motor vehicle) rather than the $50,000 provided for under the terms of settlement;

(d) the executor significantly delayed in paying the legacy under the deceased's will to her son, James Standford;

(e) despite terms of settlement in the Part IV claim being executed in August 2010, the executor failed to bring the claim for executors' commission until August 2011, during which time she has been waiting for the distribution of the balance of her entitlements from the estate so that she can purchase a wheelchair friendly home; and

(f) there were inaccuracies in the administration account.

10 Finally, Elizabeth deposed in response to the executor's affidavit in support:

"the assistance which the plaintiff allegedly provided to Ms Pietzak was outside his role as executor and if he chose to undertake these matters as an act of charity it is not for him to now claim this as a cost against the estate to his own benefit; and

as to the affidavit generally - the plaintiff has not detailed any pains and troubles undertaken by him that are outside the usual role of solicitor-executor and therefore he should not be further remunerated by the payment of the executors' commission in addition to payment of legal fees."

11 In his affidavit sworn 8 March 2012, the executor responded in the following terms to Elizabeth's affidavit:

(a) he deposed that there was no overlap between the legal fees charged for the administration of the deceased's estate and the defence of the Part IV claim and the pains and troubles that are the subject of claim for commission;

(b) he denied the allegation that he delayed in bringing the application for commission. Settlement of the sale of the property took place on 18 February 2011. An administration account was first sent to Elizabeth on 17 March 2011, and between 17 March 2011 and 12 July 2011 Elizabeth's solicitors corresponded with him regarding the administration account and his claim for commission. The application was lodged on 17 August 2011, and, despite orders made requiring Elizabeth to file an affidavit by 19 October 2011, Ms Standford did not serve a copy of her affidavit until 6 February 2012;

(c) in response to Elizabeth's suggestion that the executor could not rely upon the consent of Christine, the executor deposed that he agreed that Christine has reduced cognitive capacity and indeed her limitations greatly increase the burden upon him in his role as executor. However, he noted that a specialist gave an opinion that Christine had capacity to consent to the settlement of the Part IV claim. He spoke to Christine by telephone on 20 February 2012, when she again informed him that she did not wish to take any role in this application;

(d) in response to Elizabeth's criticism regarding his management of the estate, he stated that the will left the entire residuary estate to Christine, with the main asset being her home of many years. He simply continued the same regime that applied after State Trustees was appointed as administrators of the deceased's estate. For various reasons, the property was in an extremely poor condition, with a strong smell. In his view, the cost of forcibly removing Christine from the property in order to rent it out was not warranted in view of her rights under the will, her significant disability, lack of alternative accommodation and the pending Part IV claim;

(e) after the settlement of the Part IV claim he acted to sell the property and encourage Christine to move of her own volition, and took steps to enable the property to be presented for auction;

(f) in response to the assertion that the executor had dealt inappropriately with the motor vehicle by allowing Christine to continue to use it, he stated that he was unable to distribute the motor vehicle once the Part IV claim had been issued. He noted that Christine was the sole beneficiary of the estate, subject to the Part IV claim, and was reliant upon the vehicle for her transportation. As her disability reduces her capacity to walk, taking the vehicle would have caused Christine special and unreasonable hardship. He maintained a working relationship with Christine in the interests of the estate as a whole and considered that taking the vehicle from would have been counterproductive to that relationship;

(g) dealing with the insurance, the motor vehicle accidents and the subsequent insurance claims were part of the pains and trouble involved in administering the estate; and

(h) he responded to the specific queries and criticisms raised by Elizabeth in relation to the administration account.

Dealing with the estate beneficiary who had no family supports and a significant disability was part of my role in administering this estate. I also suffered the pains and troubles of arranging maintenance of the residence, auctioning the residence, interacting with the respondent and her husband, and other matters as set out in my first affidavit. I did not undertake these activities other than in furtherance of my duty to administer to the estate in the best interest of the beneficiaries. These efforts were neither charity or have they been the subject of legal charges. I respectfully maintain my claim for commission.

13 As can be seen from the summary above, the acrimony characteristic of the family relationship prior to the death of the deceased, and exacerbated by the Part IV claim, has continued to spill over in the application for executors' commission.

14 Counsel for the executor submitted that the efforts and achievements of the executor in his administration of this estate are commendable. His level of attention and patience was exemplary. The executor saved the estate the costs of a defended hearing of the Part IV claim and the need for an application to remove Christine from the property. He achieved a good price for the property by taking steps to improve its condition and presentation. He managed the family and the estate assets in the interests of the beneficiaries, and gave enormously of his personal time and effort to the family for three years. The family members' disabilities gave rise to need for sensitivity and additional time, and the poor relationships within the family caused additional strain for the executor. The family members' reduced ability to understand the steps required for the administration of the estate also created additional burdens upon him.

15 Counsel on behalf of Elizabeth submitted that the executor has already been adequately remunerated for his pains and troubles by the payment of legal fees for the administration of the estate and the conduct of the Part IV claim. The estate was not one that was unduly complex or out of the ordinary. There were no real difficulties in calling in the assets of the estate or identifying or establishing communication with beneficiaries. The Part IV claim was nothing out of the ordinary and was resolved by consent. Elizabeth agreed to the proposed sale of the property after a failed auction. Christine moved out of the property by consent without the need for any court orders. Counsel submitted that the failure or neglect of the executor to file itemised accounts which detailed the amounts for which payment has already been received means that neither Ms Standford or the Court properly are able to assess whether the executor is double dipping. The burden is upon the executor to show that the payment for any claim for pains has not already been paid as part of the legal fees charged by the executor.

16 Counsel submitted that the other claims for pains include trifling matters of arranging for the house to be cleaned or the lawns to be mowed, includes time spent on a wasting asset, namely, the motor vehicle. There is no evidence that Elizabeth acted in a way that was antagonistic or obstructive to the administration of the estate.

17 Further, noting that the estate is small, the needs of Elizabeth and Christine are significant, and given the executor is a solicitor whose firm charged for its services, it was unjust and unreasonable for the executor to claim further compensation.

18 Finally, counsel for Elizabeth submitted that the executor was liable to face a reduction of any executors' commission to which he would otherwise be entitled by reason of his pains and troubles on the basis of his disentitling conduct, including:

(a) his failure to take appropriate steps for the interests of Christine to be protected in this application by arranging for her to obtain independent legal advice prior to obtaining her consent to his claim;

(b) his entering into an agreement regarding his firm's legal costs without Christine being separately represented, particularly in the course of settling the Part IV claim in circumstances where Christine does not now appear to have the capacity to consent to the current application;

(c) failing to distribute the balance of the estate (the sum of approximately $145,000) which could be construed as putting pressure upon Elizabeth to consent to his application for commission;

(d) his delay in prosecuting his claim, with nearly two years having elapsed since the terms of settlement in respect of the Part IV claim were executed;

(e) his failure to provide proper itemised accounts for the legal costs already paid to his firm to enable the beneficiaries and the court to assess whether payment for the claimed "pains" has not already been paid as part of the legal fees charged by him;

(f) holding on to a wasting asset (the motor vehicle);

(g) the overpayment of moneys to Christine in breach of the terms of settlement; and

(h) the delay of seven months without explanation or excuse in distributing a legacy to Elizabeth's son, who also has severe health problems.

It shall be lawful for the Court to allow out of the assets of any deceased person to his executor administrator or trustee for the time being such commission or percentage not exceeding five per centum for his pains and troubles as is just and reasonable.

20 It is established that "pains" covers responsibility, anxiety and worry, and "troubles" the work done. In Re Will and Estate of Stone (deceased); Patterson v Halliday (No. 1),[2] Smith J stated:[3]

In assessing commission it was common ground that the Master had to consider at least the following:

(a) the work and judgement involved in the realisation of assets and earning income;

(b) the extent of administrative activities;

(c) the responsibility generally;

(d) the amount of work done not reflected in financial terms;

(e) how long the estate was administered;

(f) the size of the estate and its capacity to pay;

(g) the work of a non-professional character not undertaken by the applicant and performed by professionals; and

(h) the executor's pains and troubles relative to the result.

21 It is accepted that the position of a solicitor executor is a special case. Indeed, counsel for Elizabeth relied upon two cases involving solicitor executors in resisting the application for commission: Re McClung,[4] where an application for commission by two executors, one of whom was an accountant, and one of whom was a solicitor, was refused by Master Evans (as he then was), and Walker v D'Allesandro,[5] where T Forrest J set aside an agreement between the beneficiaries of an estate and a solicitor executor for the payment of executors' commission, as the executor concerned had breached his fiduciary duty to the beneficiaries by failing to disclose matters necessary for the beneficiaries to provide their fully informed consent to the agreement.

22 Counsel for Elizabeth submitted that the current case was analogous with the application in Re McClung, in that, similarly, the solicitor executor had provided insufficient detail to the beneficiaries and the Court to enable an assessment to be made of whether the claim for work done as an executor had already been paid for by legal fees charged to the estate. Further, she relied upon the following statement regarding the so-called "stresses" of litigation upon solicitor executors companied with nonsolicitors.

In evaluating the burden occasioned by these claims, I cannot ignore the fact that Meredith is a solicitor. He does not depose that he has no experience of or familiarity with the litigation process. I will assume that he is, as a solicitor, no stranger to resolving legal disputes and, at least to some degree, inured to the stresses of doing so. After all, he did take on personally, the conduct of the defence of the litigation. ... in these circumstances, not a great deal of weight can be given to the claim that the resolution of the claim was a considerable burden to the executors.

23 Further, counsel for Elizabeth relied upon certain observations made by Master Evans which were critical of an executor claiming for time spent on a wasting asset. He stated:

The car should have fallen into the residue of the estate and had been disposed of promptly ... It is a sorry saga of wasted effort and money.

24 Counsel for Elizabeth also relied upon the following statement by his Honour T Forrest J in Walker v D'Allessandro:[6]

I consider that an executor who is also solicitor for the estate and who is seeking to procure the beneficiaries' consent to charge an executors commission, at a bare minimum ought disclose the following, in order for that consent to be informed:

(a) The work that he has done to justify the commission. This should be done with particularity.

(b) If he is invoicing the estate for legal fees and disbursements he ought identify with particularity what constitutes the basis for same. Only then can a beneficiary accurately measure the "pains and troubles" occasioned to the executor beyond the subject matter of those legal fees and disbursements.

(c) That the beneficiaries are entitled to have this court assess his commission pursuant to s 65 of the Act. This needs to be explained fully.

(d) That it is desirable that the beneficiaries seek independent legal advice as to their position on this issue of consent. In many cases where the beneficiaries are unsophisticated people and the issues are complex he ought insist upon them receiving independent legal advice and ought not enter into any commission agreement until they have.

25 Counsel for Elizabeth relied upon this passage as support for the contention that the executor, by not supplying itemised bills for his firm's legal costs incurred in the administration of the estate and the defence of the Part IV claim, and detailed particulars of the tasks being the subject of the claim for commission, had not complied with his obligations to the beneficiaries and the Court, and could not rely upon Christine's consent to the claim, because any such consent (assuming she had the capacity to consent) was not fully informed or provided with the benefit of independent legal advice.

26 In my view, the executor is entitled to commission of the sum claimed. It is apparent from the evidence of the executor, which was not displaced or really seriously challenged by Elizabeth, that his role as executor has been challenging and time consuming. Further, I accept that his careful management of the family and the estate, in particular, his facilitation of the settlement of the Part IV claim, which necessitated Christine leaving her home of decades, not only maximised the value of the assets of the estate, but prevented their further dissipation through litigation. Many of the criticisms levelled at the executor by Elizabeth (such as his decision to maintain the status quo with respect to Christine's occupation of the property and possession of the motor vehicle) are unsustainable, and in any event went to matters which are well within the range of an executor's discretion. It must be remembered that until the settlement of the Part IV claim, Christine was the sole residuary beneficiary of the estate. In those circumstances, for the executor to remove Christine from the property against her wishes and expend estate funds to make the property attractive for rental on a commercial basis to generate perhaps a little more income for the estate, and sell the motor vehicle Christine used and needed for a modest sum could not only be counterproductive, but somewhat ludicrous in the circumstances.

27 In relation to the submission that the effort required in the administration of the estate was unremarkable, I do not consider, with respect, that this is the applicable test. Section 65 provides that the Court may order what commission is appropriate in respect of an executor's "pains and troubles". It does not require that, in order to claim commission an executor must show that he or she has undertaken work or been burdened by stresses of an extraordinary amount. Rather, the extent or degree of such burdens, along with the other matters referred to in Patterson v Halliday, is taken into account by determining what percentage of the value of the estate ought to be awarded by the Court.

28 Section 65 of the Act recognises that the role of an executor is, of itself, a burden upon those who accept that responsibility. While a professional person such as a solicitor may be better equipped and supported than others to assume this responsibility, the converse argument is that professional people often lead busy, demanding lives. Assuming the responsibilities of an executor of an estate displaces time which an executor might be otherwise available to him or her to attend to their professional and private affairs. Executors who are solicitors who spend time and effort in the administration of an estate which is not adequately compensated for by the legal fees charged by their firms for work carried out on behalf of an estate, are just as entitled to compensation by way of commission as executors who are not legal practitioners.

29 Further, while I accept there are differing views amongst the judiciary and the profession regarding the appropriateness of legal practitioners accepting appointments as executors of deceased estates,[7] particularly in circumstances where the practitioner concerned had drawn up the will in which the appointment was made. In my view, solicitors are generally well qualified to accept such appointments, and in the current case, the executor was far better qualified than any family member to manage the estate, particularly given the disabilities of the family members and acrimonious family relationships. Indeed, I consider that in making themselves available to accept appointment as executors, solicitors provide a valuable service to the community, particularly in nonmetropolitan areas, where the number of professionally qualified persons in the community might be limited. Of course, solicitors need to be scrupulous to avoid real or perceived conflicts of interest, and to ensure that any claims for executors' commission do not involve any "double dipping". But, provided these conditions are met, they ought not be disadvantaged or discouraged in any claim for reasonable expense and commission, particularly in circumstances where beneficiaries have fulsome rights of review under the consumer protection provisions of the Legal Profession Act 2004.

30 I also reject the submission that I cannot presume that Christine has the requisite capacity to consent to, or to at least determine not to oppose, the application for commission. The executor has deposed to the fact that he has had regular contact with Christine over a number of years, at least until late 2010. He is familiar with her condition and her presentation. He has deposed that he has had sufficient concerns in the past to decide to obtain a professional opinion with respect to her capacity to understand the import of advice received and instructions given by her. Given that he has deposed that he has had recent telephone contact with her, he would no doubt be alert to any deterioration in her condition which would warrant further investigation, especially in the context of this application. In any event, in this application, the Court has had the benefit of a vigorous contradictor.

31 I reject the submissions that the executor's failure to provide an itemised account of what work was done in respect of his executorship, the estate administration, and the Part IV claim disentitles him from an award of commission to which he was otherwise entitled. The executor is claiming what is a modest sum, in dollar terms. He has given detailed evidence regarding the work he has done in the administration of the estate that has not been the subject of charges by way of legal fees, at a level of detail which has generally been acceptable to this Court from executors claiming commission. He has expressly deposed that his firm has not charged for the numerous attendances upon Christine to which he has deposed. Given that he is an officer of the Court, the Court is entitled to presume, unless there is evidence or other grounds for suspicion, that he would not mislead the Court. In this case, unlike in the other cases referred to me by counsel for Elizabeth, there is no evidence that he has or might have been engaged in "double dipping". His firm's file has been independently assessed by the LIV, which was asked expressly to review only the "litigation component" of the file,[8] and both Christine and Elizabeth have rights of review under the Legal Profession Act with respect to the legal fees claimed by the executor's firm should they choose to exercise them. However, the sums charged by the firm for the administration of the estate and in defence of the Part IV claim are unremarkable (unlike in Re McClusky), and indeed the fees and disbursements incurred for the defence of the Part IV claim are substantially less than the fees charged by Elizabeth's solicitors for her prosecution of the Part IV claim.

32 The size of the estate is something which must be taken into account, but, as is often the case when litigation is involved, the complexity of the administration is not necessarily directly proportionate to the size of the estate.

33 I also reject the submission that the executor has been responsible for undue delay in the administration of the estate and the prosecution of the application for commission. I can infer that there was some correspondence between the parties prior to the settlement of the sale of the property (which crystallised the size of the estate) and the making of the application. A party should not be censured for making reasonable efforts to resolve the matter without recourse to litigation, particularly in the context of a small estate. Responsibility for further delays in the resolution of this claim cannot be laid at the feet of the executor. As for the delay in the payment of the legacy to Elizabeth's son, there is no evidence as to any demand for payment being made, and, in any event, while it is not necessarily a trivial matter, it hardly amounts to disentitling conduct.

34 Finally, while I accept that solicitor executors may be more accustomed than lay people to the stresses and demands of litigation, the necessity to defend a Part IV claim should always be taken into account in assessing a claim to commission. I also reject the submission that the support and counsel the executor gave to Christine should be considered an act of charity not compensable under s 65 of the Act. It is apparent from the executor's evidence (and even in the language in which his affidavit was couched when describing Christine's condition and presentation) that the executor approached his task with great tact and sensitivity, and that his objective at all times was to minimise disputation and upset in the interests of the smooth finalisation of the administration of the estate, in the interests of all concerned. Such exemplary conduct should not be dismissed as voluntary charity, and should certainly not be a disentitling matter in an application for commission.

35 For completeness, I consider the current case to be quite distinguishable from the situation in Re McClusky and Walker v D'Allessandro. In the former, it was apparent to the Master that there had been substantial "double dipping" by both executors, and one executor had charged for work he was not authorised to charge for. Both executors had previously been engaged by the deceased to manage her affairs while she lived, and as such the executors could be presumed to be intimately familiar with the assets and liabilities of the estate. The Master had a number of serious criticisms of the administration of the estate, and considered the legal fees charged for the administration of the estate to be "extraordinary". No such criticisms can be levelled against the executor in this case.

36 As for Walker v D'Allesandro, noting it was not in fact a claim for executors' commission, but rather an action by beneficiaries to set aside an agreement for the charging of executors' commission, again there was evidence that the executor had charged legal fees for the work which was the subject of the claim for commission. In this case, the particular focus of T Forrest J's criticism was the conduct of the executor in representing to the beneficiaries that unless they agreed to his claim for commission, there could not be an interim distribution of what was a substantial estate, and the failure of the solicitor executor to inform the beneficiaries that they could require the executor to make an application to the Court under s 65 of the Act. No such allegation could be levelled at the executor in this case. In Walker v D'Allesandro, the executor claimed 3 per cent commission upon an estate worth approximately $1.6 million (that is, approximately $48,000) in circumstances where the firm concerned charged $16,000-$17,000 for the administration of the estate, and where the administration of the estate was uncomplicated, most of the assets being in the form of cash.

37 Accordingly, the conduct of the executor in the current case is quite different from the conduct which was the subject of criticism in Re McClusky and Walker v D'Allesandro, and as such, this application is readily distinguishable from these authorities.

38 The executor's application for commission at the rate claimed is granted. I will hear from counsel as to the form of the order and the question of costs.

[1] At paragraphs 29 and 30 of his affidavit sworn 17 August 2011.

[2] [2003] VSC 298.

[4] [2006] VSC 209.

[5] [2010] VSC 15.

[8] See letter to LIV Costing Service dated 12 August 2010, provided to the Court upon request prior to the delivery of this judgment.